利益衡平视角下终本执行与个人破产制度的衔接

The Connection Between Termination of the Current Execution Procedure and Personal Bankruptcy System from the Perspective of Balancing Interests

终本执行与个人破产能否有效衔接,事关《民事强制执行法(草案)》的进一步优化以及个人破产制度的最终订立。个人破产案件因其“高负面性”“弱清偿性”以及审理的复杂性,使法院、债权人、债务人等主体更偏爱适用终本执行,而人为地规避适用个人破产制度,导致终本执行转个人破产程序难以启动。当下,两者的并行和交织状态已成现实,为实现两者在发挥各自制度功能的基础上更好地形成制度合力,应基于利益衡平视角,做到以下四点:一是赋予当事人终本执行转破产的程序选择权;二是加强法院依职权终本执行转个人破产的法定释明义务;三是基于终本执行主体的利益考量确定自由财产范围;四是基于终本执行已有的配套制度制定破产免责制度。

The effective connection between termination of the current execution procedure and personal bankruptcy is related to the further optimization of the Civil Compulsory Execution Law(Draft)and the final establishment of the personal bankruptcy system.Due to its high negativity,weak solvency,and complexity in handling personal bankruptcy cases,courts,creditors,debtors,and other parties tend to prefer the use of the termination of the current execution procedure,and artificially avoid the application of the personal bankruptcy system,resulting in the difficulty of initiating the transition from the termination of the current execution procedure to personal bankruptcy proceedings.At present,the parallel and intertwined state of the two has become a reality.In order to achieve a better institutional synergy between the two based on their respective institutional functions,the following points should be achieved from the perspective of balancing interests:the first is to grant the parties the right to choose the procedure of converting the termination of the current execution procedure into bankruptcy;The Second is to strengthen the satutory interpretation obligation of the court to transfer termination of the current execution procedure to personal bankruptcy based on its authority;The third is to determine the scope of free property based on the consideration of interests of the execution subject;The fourth is to establish a bankruptcy exemption system based on the existing supporting systems for termination of the current execution procedure.